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Election Commission Decisions Deadlocking on Party Lines

WASHINGTON — A recent stream of deadlocked decisions at the Federal Election Commission has caused some people who follow its work to say that they cannot remember seeing less common ground between the three Republican members and the three Democrats.

While tie votes at the six-member commission are not a new phenomenon, advocates of tighter campaign finance rules and others say that this crop of commissioners, divided on party lines, seem to have vastly different ideas about how campaign finance laws should be enforced.

“It’s a new period of dysfunction at the F.E.C., where you have this kind of deadlock that’s never been seen before,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles. “You’re not getting any kind of cross-party cooperation, and there’s no meeting of the minds on what the role of the F.E.C. should be or even what’s constitutional.”

As it turns out, the evidence does suggest that deadlocks at the commission are on the rise, even if they are the outcome in only a small fraction of cases. At least four commissioners must support an enforcement matter for it to proceed.

A Congressional Research Service analysis published last month found that the commission deadlocked on roughly 13 percent of contested enforcement cases closed from July 2008 to June 2009. Michael Franz, a professor at Bowdoin College who has studied voting patterns at the commission, estimates that it deadlocked about 4.5 percent of the time in a large sample of those sorts of cases from 1996 to 2004.

The commission’s recent actions have piqued the interest of, among others, Senators John McCain and Russ Feingold, the bipartisan pair who teamed up on the 2002 legislation that barred the contribution of so-called soft money to political parties.

In one case, the three Republican commissioners — Matthew S. Petersen, Caroline C. Hunter and Donald F. McGahn II — refused to endorse a settlement the commission had reached with a novice Democratic Congressional candidate who had provided inaccurate information about his donors. The commission then reimbursed the campaign, which had already paid a fine.

In another, the commissioners deadlocked on whether a Mitt Romney supporter exceeded contribution limits by chartering a plane from Utah to Boston so supporters of Mr. Romney’s presidential bid could attend a fund-raiser. And the three Republican commissioners have also rejected a settlement negotiated by the F.E.C.’s own lawyers with the November Fund, a so-called 527 group financed by the Chamber of Commerce that opposed the Democratic presidential ticket in 2004.

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John McCain and Russ Feingold want to scrap the commission.Credit
Susan Walsh/Associated Press

Some of the commissioners have also grown more pointed when writing about their colleagues’ rationale. Two Democrats, Cynthia L. Bauerly and Ellen L. Weintraub, wrote that the case involving Arjinderpal Singh Sekhon, the novice candidate, might have had “the most inexplicable resolution” they had seen while on the commission. For their part, the Republicans implied that in the same case the Democratic commissioners — who also include the chairman, Steven T. Walther — had engaged in “rote enforcement of hypertechnical rules.”

Fred Wertheimer, the president of Democracy 21, a nonprofit that advocates for campaign finance overhaul, places most of the blame for the deadlocks on the Republican commissioners, saying they “have taken the agency captive.”

“Right now, we don’t have an enforcement agency when it comes to campaign finance laws,” added Mr. Wertheimer, who has criticized the commission’s ability to enforce campaign finance regulations for years. “It might as well have been shut down by the Republican commissioners.”

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More conservative campaign finance experts, however, see little wrong with the commission’s direction.

“Reformers are almost always wrong,” said Bradley A. Smith, a former commission chairman who now leads the Center for Competitive Politics. “There’s always a tendency to put the blame on the more deregulatory commissioners. I don’t see that the commission is failing to give advice or enforce the law.”

Mr. Franz, the Bowdoin professor, said that he believed the Republican commissioners had played a role in the increased number of deadlocks, but that he did not see the rise in tie votes as a sign that the commission was ineffective.

“The ideological fights between Democratic and Republican commissioners are over principles about what the law can and should do,” Mr. Franz said. “It’s a reflection over questions about the scope of the law, which the courts and Congress are also dealing with.”

Indeed, the Supreme Court under Chief Justice John G. Roberts Jr. has taken an increasing deregulatory view of campaign finance. In the recent re-argument of Citizens United v. Federal Election Commission, the chief justice commented that “we don’t put our First Amendment rights in the hands of F.E.C. bureaucrats.” And, following the Supreme Court’s lead, the federal appeals court for the District of Columbia, ruling this month in a case involving the group Emily’s List, loosened election spending restrictions on nonprofits and other independent political groups.

Still, the direction of the F.E.C. does seem to have spurred Mr. McCain, an Arizona Republican, and Mr. Feingold, a Wisconsin Democrat, into action.

This summer, the two senators revived a proposal that would scrap the commission altogether, instead creating a three-member Federal Election Administration in which no two members could be from the same political party.

A version of this article appears in print on September 27, 2009, on Page A16 of the New York edition with the headline: Election Commission Decisions Deadlocking on Party Lines. Order Reprints|Today's Paper|Subscribe